In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4195
KARAYANA HADAYAT,Œ
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
On Petition for Review of an Order of
the Board of Immigration Appeals.
No. A76-773-848
____________
ARGUED OCTOBER 27, 2005—DECIDED AUGUST 15, 2006
____________
Before RIPPLE, KANNE, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Karayana Hadayat, an Indonesian
national, arrived in the United States in 1999 on a visitor
visa. Soon thereafter, his brother, a U.S. citizen, filed a visa
petition on Hadayat’s behalf. Although the petition was
approved, no visa was immediately available. Once his
visitor visa expired, the only legal option available to
Œ
The petitioner’s name is identified in the administrative rec-
ord as Karyana Hidayat. Since both his counsel and the govern-
ment use the spelling Karayana Hadayat in this petition for
review, we do so as well.
2 No. 04-4195
Hadayat was to return to Indonesia and await action on his
brother’s petition. Hadayat chose another path: he decided
to stay in the United States unlawfully and wait until a
permanent resident visa became available, hoping in the
meantime not to attract the attention of immigration
authorities. This waiting game came to an abrupt end in
2003 when Hadayat registered with the Department of
Homeland Security (DHS) pursuant to the newly-promul-
gated National Security Entry-Exit Registration System
(NSEERS) and was immediately placed into removal
proceedings. Although he initially agreed to a voluntary
departure order, just before his deadline to depart Hadayat
filed a motion to reopen with the immigration judge (IJ),
arguing that he was entitled to remain in the United States
based on his now-approved petition. The IJ denied
Hadayat’s motion to reopen and the Board of Immigration
Appeals (BIA) affirmed. Hadayat filed a motion for recon-
sideration with the BIA, which was also unsuccessful.
Hadayat now contends that the BIA erred in denying his
motion for reconsideration. He also raises the new argu-
ment that he was unconstitutionally targeted for registra-
tion and removal based on his ethnicity and religion.
Because we conclude that Hadayat’s approved visa peti-
tion does not, as a matter of law, allow him to remain in the
United States, and because we lack jurisdiction over
Hadayat’s challenge to the Attorney General’s decision to
commence proceedings against him, we affirm the BIA’s
decision.
I
Hadayat arrived in the United States on January 22,
1999. Hadayat’s brother, Derry Bankston, filed an I-130
Petition for Alien Relative on Hadayat’s behalf on June 23,
1999. On July 22, 1999, Hadayat’s visitor visa expired. In
late 2001, Bankston received notice from the then Immigra-
No. 04-4195 3
tion and Naturalization Service that Hadayat’s petition had
been approved. The notice stated, however, that Hadayat
was “not eligible to file an adjustment of status application”
(presumably because no visa was currently available).
In August 2002, the Department of Justice published the
final rule enacting the NSEERS program, explaining that
“[r]ecent terrorist incidents have underscored the need to
broaden the special registration requirements for nonim-
migrant aliens from certain designated countries . . . whose
presence in the United States requires closer monitoring, to
require that they provide specific information at regular
intervals to ensure their compliance with the terms of their
visas and admission, and to ensure that they depart the
United States at the end of their authorized stay.” Registra-
tion and Monitoring of Certain Nonimmigrants, 67 Fed.
Reg. 52,584 (Aug. 12, 2002). A later notice specifically
required nonimmigrant male nationals and citizens of
Indonesia to register with the DHS by March 28, 2003,
Registration of Certain Nonimmigrant Aliens from Desig-
nated Countries, 68 Fed. Reg. 2363 (Jan. 16, 2003), a
deadline that was later extended to April 25, 2003. Regis-
tration of Certain Nonimmigrant Aliens from Designated
Countries, 68 Fed. Reg. 8046 (Feb. 19, 2003). Hadayat
registered on April 22, 2003, and was issued a Notice to
Appear (NTA) the same day, charging that he had over-
stayed his visitor visa.
On September 9, 2003, Hadayat appeared before an IJ.
He admitted that he was out of status and asked for and
received a voluntary departure order. This order required
Hadayat to leave the United States by December 9, 2003.
Shortly after the hearing, Bankston filed a lawsuit in
federal court seeking to enjoin the DHS from removing his
brother, contending that Hadayat was entitled to remain in
the United States based on the approved visa petition and
challenging the constitutionality of NSEERS. In late 2003,
the district court dismissed the case, concluding that
4 No. 04-4195
Bankston lacked standing to bring these claims on behalf of
his brother.
Four days before his required departure date, Hadayat
filed a motion to reopen with the IJ, citing his approved
visa petition and the pending federal lawsuit as grounds for
a new hearing. He also filed a request for an extension of
his voluntary departure date with the District Director of
the Chicago office of the DHS. (The record does not reveal
the District Director’s response to this request.) December
9 came and went, and Hadayat did not leave the United
States. Eventually, on February 20, 2004, the IJ denied
Hadayat’s motion to reopen, explaining that:
1. The respondent has not established prima facie
eligibility for Adjustment of Status under section 245(i).
The cut-off date for visa petitions filed by USC brothers
is February 22, 1992. Since the petition filed by the
respondent’s brother was filed on January 3, 1999, he
is at least seven [years] away from visa availability.
2. Under Matter of Shaar,[21 I&N Dec. 541 (BIA 1996),]
when an alien requests and receives voluntary depar-
ture, he must depart within the allotted time, otherwise
he is barred from Adjustment of Status. In this case,
the respondent was given the appropriate warnings at
his hearing on September 9, 2003 and yet has remained
in the U.S. after voluntary departure expired.
Hadayat appealed. The BIA affirmed on the first ground
only, explaining that “[t]he fact that he is a beneficiary of
an approved visa petition, without evidence that he has a
current priority date, is insufficient to support a motion to
reopen.” Hadayat did not file a petition for review from this
order.
Instead, he filed a motion for reconsideration with the
BIA, contending that our then-recent decision in Subhan v.
Ashcroft, 383 F.3d 591 (7th Cir. 2004), dictated a result in
his favor. The BIA disagreed, distinguishing Subhan as a
No. 04-4195 5
case concerning “the denial of a continuance motion
where . . . the Immigration Judge failed to give a reasoned
explanation of the denial.” In Hadayat’s case, the BIA
explained, the IJ “gave a reasoned explanation why he
denied the respondent’s motion to reopen.” The BIA also
reiterated that Hadayat was ineligible to adjust his status
because no visa was immediately available and added
that his failure to comply with the voluntary departure
order created a further bar. Hadayat petitioned for review
of this order.
II
We have jurisdiction over Hadayat’s petition for review of
the BIA’s denial of his motion for reconsideration pursuant
to 8 U.S.C. § 1252(b). We review the BIA’s denial of a
motion for reconsideration for an abuse of discretion.
Hernandez-Baena v. Gonzales, 417 F.3d 720, 724 (7th Cir.
2005).
A
Section 245(i) of the Immigration and Nationality Act
permits certain persons who entered the United States
without inspection or otherwise violated their immigra-
tion status—and therefore would otherwise be ineligible
to apply for adjustment of status from within the United
States—to seek adjustment nonetheless if a petition was
filed on their behalf prior to April 30, 2001, and they
pay a $1,000 penalty. 8 U.S.C. § 1255(i)(1). If an alien
satisfies these criteria, “the Attorney General may adjust
the status of the alien to that of an alien lawfully ad-
mitted for permanent residence if[:] (A) the alien is eligible
to receive an immigrant visa and is admissible to the
United States for permanent residence; and (B) an immi-
grant visa is immediately available to the alien at the time
6 No. 04-4195
the application is filed.” § 1255(i)(2). Although beneficiaries
of petitions properly filed and approved under § 245(i) were
grandfathered if their visas were not immediately available,
“[a]n alien’s nonimmigrant status is not affected by the fact
that he or she is a grandfathered alien.” 8 C.F.R.
§ 245.10(l). What is grandfathered, in other words, is the
basic eligibility for adjustment; in all other respects the
individual remains a “nonimmigrant”—that is, a person
with no legal right to remain in the United States unless
and until an immigrant visa becomes available.
Hadayat argues that this interpretation, which means
that he is still subject to removal despite the approval of his
brother’s petition, “defeats the very purpose and intent” of
§ 245(i). An approved visa petition under § 245(i), however,
is “not a visa, but, rather, is merely a preliminary step in
the visa application process. It does not guarantee that a
visa will be issued, nor does it grant the alien any right to
remain in the United States.” Labojewski v. Gonzales, 407
F.3d 814, 822 (7th Cir. 2005) (quotation marks omitted). In
other words, as a grandfathered alien, Hadayat was eligible
to adjust his status at some future date when a visa became
available, but he was not sheltered from being removed
from the United States in the meantime.
Admittedly, it might seem as if the government is being
allowed to renege on its end of the § 245(i) “deal”—after all,
it has taken the alien’s money, knowing that she is, or soon
will be, out-of-status, in exchange for holding her place in
the visa line, and then turns around later and acts to
remove her for having overstayed her visa. We
have commented before on the confusing, if not mislead-
ing, nature of similar aspects of this system, as it may be
perceived by foreigners who often lack a sophisticated
understanding of the U.S. legal system or fluency in
English. See Ahmed v. Dep’t of Homeland Security, 328 F.3d
383 (7th Cir. 2003). Nevertheless, a close look at the rules
shows that the government has made no promises during
No. 04-4195 7
the visa process that it is not prepared to keep. The immedi-
ate availability of a visa is a statutory prerequisite to
adjustment of status, but then adjustment of status is a
matter committed to the discretion of the Attorney General.
See Singh v. Gonzales, 404 F.3d 1024, 1028 (7th Cir. 2005);
8 U.S.C. § 1255(a). Nothing prohibits the Attorney General
from strictly enforcing § 245(i)’s immediate visa availability
requirement.
Hadayat argues that our decision in Subhan is to the
contrary, but our holding in that case is not as broad as he
contends. Although Subhan involved a petition filed under
§ 245(i), we held only that the IJ’s denial of a continuance
“without giving a reason consistent with the statute (indeed
without giving any reason)” required a remand. 383 F.3d at
595. Indeed, we stressed in Subhan that a different result
would have been required if the IJ had given any reason
whatsoever for his action “consistent with the adjustment-
of-status statute.” Id. at 593-94. In Hadayat’s case, the IJ
gave two specific reasons for denying the motion to reopen:
first, no visa was immediately available, and second,
Hadayat had failed to comply with the voluntary departure
order. Subhan, therefore, does not support Hadayat’s
petition for review.
Nor does the BIA’s decision in Matter of Velarde-Pacheco,
23 I&N Dec. 253 (BIA 2002), offer much help for Hadayat’s
claim. In that case, the BIA held that a properly filed
motion to reopen, seeking adjustment of status based on
a marriage petition, may be granted “in the exercise of
discretion” as long as certain specified criteria are met. Id.
at 256. The BIA based its decision in part on its reading
of “Congress’ legislative intent in amending the marriage
fraud provisions: that aliens who marry after proceed-
ings have been initiated, and who seek adjustment of
status, should be afforded one opportunity to present clear
and convincing evidence that their marriage is bona fide.”
Id. at 257. Hadayat seems to argue that the fact that the
8 No. 04-4195
BIA treats marriage applications with relative liberality
means it must do the same for his petition. But nothing
in the statute requires this type of parity. Since Congress
has expressed its desire to treat marriage petitions differ-
ently from other family petitions, see, e.g., 8 U.S.C. § 1154,
it is not unreasonable for the BIA to establish special
procedures for the consideration of marriage petitions.
B
Hadayat next contends that his failure to comply with the
voluntary departure order should not render him ineligible
to adjust his status, arguing that the departure period
should have been stayed pending the resolution of his
motion to reopen. Although the unavailability of a visa
constituted a sufficient ground for the BIA to affirm the IJ’s
denial of the motion to reopen, whether Hadayat violated
the voluntary departure order is relevant to whether his
future admission to the United States is barred. We
therefore discuss the issue briefly.
“Voluntary departure confers substantial benefits com-
pared with involuntary removal, and this difference pro-
vides an incentive to depart without dragging out the
process and without requiring the agency and courts to
devote resources to the matter.” Alimi v. Ashcroft, 391 F.3d
888, 892 (7th Cir. 2004). One such benefit is that “[a]n alien
who departs voluntarily may obtain a visa immediately, if
eligible for one,” whereas “[a]n alien removed from the
United States cannot obtain a visa to return for at least five
years.” Id. (citing 8 C.F.R. § 212.2(a)). But what effect would
voluntary departure have on an individual like Hadayat,
who has an approved I-130 petition filed under § 245(i), but
not an immediately available visa? At oral argument (and
in a post-argument order) we asked the Attorney General to
address this question. The government responded that once
such an individual is placed in removal proceedings, her
No. 04-4195 9
visa application will be deemed abandoned when she leaves
the United States, even if she voluntarily departs. See 8
C.F.R. § 245.2(a)(4) (ii)(A). Such an individual can, however,
file a new visa petition from her home country without
facing any bars to admissibility, in the Attorney General’s
opinion.
Rather than comply with the voluntary departure order,
of course, Hadayat remained in the United States. He now
wants us to hold that his departure order was automatically
stayed by his motion to reopen. This position is flatly
inconsistent with a long-held position of the BIA to the
contrary. See Matter of Shaar, 21 I&N Dec. 541 (BIA 1996).
That alone may not be dispositive; in fact, although we have
never faced the issue, several of our sister circuits have
rejected Matter of Shaar, which was based on a previous
version of the law, as inconsistent with the current statu-
tory scheme. See Kanivets v. Gonzales, 424 F.3d 330, 335
(3d Cir. 2005); Sidikhouya v. Gonzales, 407 F.3d 950, 952
(8th Cir. 2005); Barroso v. Gonzales, 429 F.3d 1195, 1205
(9th Cir. 2005); Ugokwe v. U.S. Attorney Gen., 453 F.3d
1325 (11th Cir. 2006); but see Banda-Ortiz v. Gonzales, 445
F.3d 387, 391 (5th Cir. 2006) (holding that filing of motion
to reopen does not automatically toll voluntary departure
period). We need not reach this question, however, because
Hadayat failed to depart even after the IJ denied his motion
to reopen on an independent ground and the BIA rejected
his appeals, nor did Hadayat seek a stay tolling his time for
voluntary departure from this court, as is permitted by
Lopez-Chavez v. Ashcroft, 383 F.3d 650, 654 (7th Cir. 2004).
No court goes so far as to hold that an alien may simply
disregard a voluntary departure order while pursuing a
petition for review in federal court; indeed, 8 U.S.C.
§ 1252(b)(3)(B) explicitly states that “[s]ervice of the
petition [for review] . . . does not stay the removal of an
alien pending the court’s decision on the petition, unless the
court orders otherwise.” Thus, whether or not Matter of
10 No. 04-4195
Shaar remains good law, Hadayat’s failure to comply with
his voluntary departure order after the BIA acted renders
him ineligible for the benefits associated with voluntary
departure.
C
Finally, Hadayat argues that the NSEERS program
violated equal protection and that he was unconstitution-
ally targeted for registration and removal based on his
ethnicity and religion. He notes, accurately, that while
Indonesian nationals were required to register with DHS,
“[a] person in the same situation . . . but not from one of the
[NSEERS] enumerated countries would not have
been placed in removal proceedings.”
The government responds that since Hadayat failed to
raise this claim before the BIA we are barred from review-
ing it. Although a petitioner is generally required to
exhaust administrative remedies with the BIA before
raising an issue in a petition for review, see 8 U.S.C.
§ 1252(d), there is an exception for claims the BIA itself
is powerless to address, such as “fundamental constitu-
tional claims.” Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th
Cir. 2004); Matter of Valdovinos, 18 I&N Dec. 343, 345 (BIA
1982). When constitutional claims “involve pro-
cedural errors correctable by the BIA, applicants must raise
such claims as part of their administrative appeal.” Capric,
355 F.3d at 1087. Hadayat contends that the substance of
the regulation, the targeted registration requirements,
violates equal protection, not just that the BIA has violated
due process in implementing the regulation. This is the type
of fundamental constitutional claim the BIA does not
address. Cf., Matter of Rodriguez-Carrillo, 22 I&N Dec.
1031, 1035 (BIA 1999) (declining to pass on the constitu-
tionality of provisions of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996). Hadayat was
therefore not required to exhaust.
No. 04-4195 11
The government also contends that we lack jurisdiction
over Hadayat’s challenge to NSEERS for a second reason:
that his claim challenging the Attorney General’s decision
to issue him an NTA is barred by 8 U.S.C. § 1252(g), which
prohibits federal courts from “hear[ing] any cause or claim
by or on behalf of any alien arising from the decision or
action by the Attorney General to commence proceedings,
adjudicate cases, or execute removal orders against any
alien.” In Reno v. American-Arab Anti-Discrimination
Committee, 525 U.S. 471 (1999), a case brought on behalf of
several men affiliated with the Popular Front for the
Liberation of Palestine targeted for deportation based on
routine immigration violations, the Supreme Court held
that § 1252(g) bars most selective prosecution claims
brought by aliens, explaining that “[w]hen an alien’s
continuing presence in this country is in violation of the
immigration laws, the Government does not offend the
Constitution by deporting him for the additional reason
that it believes him to be a member of an organization that
supports terrorist activity.” Id. at 491-92. In short, the
Court stated, “deportation is necessary in order to bring
to an end an ongoing violation of United States law. The
contention that a violation must be allowed to continue
because it has been improperly selected is not powerfully
appealing.” Id. at 491 (emphasis in original).
Although American-Arab Anti-Discrimination Committee
leaves open a narrow exception for the “rare case in which
the alleged basis of discrimination is so outrageous that the
foregoing considerations can be overcome,” id., Hadayat’s
conclusory comments regarding the allegedly discriminatory
effect of NSEERS do not come close to meeting this high
burden. We therefore lack jurisdiction to review Hadayat’s
challenge to the registration program under § 1252(g).
12 No. 04-4195
III
Accordingly, we DENY Hadayat’s petition for review.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-15-06